Abortion Legislation Bill passes Second Reading 81-39

The Abortion Legislation Bill had it’s Second Reading debate last night and passed on a personal (conscience) vote easily, 81-39. The bill is a much better approach to abortion than the current law that is not followed in practice, making abortion health issue rather than a legal issue.

From Abortion Legislation Bill — Second Reading

Hon ANDREW LITTLE (Minister of Justice):

This bill was introduced on 5 August last year and was referred to the Abortion Legislation Committee, a special committee set up specifically for consideration of this bill. The committee was established by the House precisely for that purpose. I want to thank members of the committee, in particular the chair, the Hon Ruth Dyson, and the deputy chair, the Hon Amy Adams, for the work they did. They received more than 25,000 submissions. They heard from more than 130 people during 30 hours of oral evidence.

This bill and this topic are a very sensitive topic. It’s a very difficult topic for many citizens and many, many members of this House to discuss and debate, but debate it we must, because this legislation that we’re now considering—the changes to which we are considering—are more than 40 years old and it is timely and appropriate to consider it.

I have previously spoken about the reasons why I believe the law governing abortion needs to be changed, not the least of which is that the legislation is so old, but also the fact that the framework for abortion in New Zealand right now is set out in both the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977, and a woman seeking an abortion should not have her actions stigmatised as if she were committing a criminal act—she is not; she is making a decision about herself and her body.

Following the select committee process, the Abortion Legislation Committee has recommended changes to improve access to abortion services which it considers are in the best interests of women.

There has been scaremongering about abortions up to birth, which is a distortion of what will be allowed for the good of the health of the mother and the unborn child. The vast majority of abortions are in the first 20 weeks.

In relation to abortion after 20 weeks, in response to submissions received, the revised bill changes the test that a qualified health practitioner must follow if providing abortion services to a woman who is more than 20 weeks pregnant.

The revised test expands some of the wording from the original bill. In fact, the requirements now include a requirement that the health practitioner regards the abortion as clinically appropriate, the health practitioner has to consult another health practitioner—so it’s not just one but two—and, of course, that reflects current practice anyway.

We have to remember that for women seeking an abortion at 20 weeks, generally speaking that is a wanted pregnancy but there is something seriously wrong either with the foetus or with the woman’s health. This is a very difficult point at which to make this decision, and I hope that people embarking on this debate will recognise that. That is now reflected in the changes that the committee has proposed.

Abortions for ‘sex selection’ was an issue raised.

They add in a requirement that the medical professional has to have regard to his or her relevant legal, professional and ethical standards to which they are subject, and also consider the woman’s physical health, mental health, and overall wellbeing, and, of course, the gestational age of the foetus.

The committee was concerned about submissions made that some might consider an abortion on the grounds of gender biased sex selection, and they point to evidence overseas. The committee concluded that there was no evidence of this happening in New Zealand but they wanted a statement in the bill that reflected the, generally, New Zealand view on this, which is that we don’t tolerate sex selection as a reason for an abortion.

On ‘safe areas’ (from opponents and protesters)  in the vicinity of places where abortions are done:

I turn briefly to safe areas because I know this is an area to test those who are vigilant about and are champions of freedom of speech in this country, and that’s very important and we need those voices—they’re absolutely vital. The truth is that there are women who are seeking abortions and going to facilities where they are prevailed upon in an unseemly and entirely inappropriate way, and they should not be subject to that sort of behaviour.

Now, the changes that the committee have recommended in this regard are to shift the offence from a reckless sort of standard to an objective test; it’s now expressed as an ordinary reasonable person test. That is it’s an offence to intimidate, interfere, or obstruct a person in a safe area in a manner that the ordinary reasonable person would know would cause emotional distress to a protected person. Protected person is defined as either a medical practitioner going to a facility from which an abortion might be carried out, or a person who is seeking an abortion.

The committee has also inserted a requirement that each safe area is reviewed within five years of the area’s establishment. There is a process to go through to establish a safe area, it’s done by the Minister of Health in consultation with the Minister of Justice, there has to be good reasons for it, it has to be done by Order in Council, and it is reviewed on a periodic basis.

Contentious objection:

This is another sensitive area too, particularly for health practitioners who do not support the idea of an abortion. For contraception and sterilisation services, the person with an objection to dispensing advice to a patient had to tell the patient how to access the contact details of another provider of the services; for abortion services, the person objecting would have to tell the patient how to access a list of service providers.

The committee has simplified this process for someone with a contentious objection to ensure timely access for the person seeking services. The revised process is that the contentious objector must tell the person seeking an abortion or sterilisation or contraception services how to access the contact details of another person who is a provider of the service requested.

The committee also picked up on an existing provision in the current Contraception, Sterilisation, and Abortion Act related to contentious objection that had not been amended in the bill as it was introduced. This section regards supply of contraception to victims of sexual violation. The committee has aligned the requirements for practitioners with conscientious objections in these instances to the process set out in the bill.


We need a law where a pregnant woman can and should be trusted to make the decision for themselves about an abortion in consultation with their health practitioner. This bill does that, and on that basis I commend this bill to the House.

Other speakers:

AGNES LOHENI (National):

As a member of the Abortion Legislation Committee, I was not able to effect any meaningful change to this bill despite an overwhelming number of submissions against it. As a consequence, I wrote a minority view to ensure those views that opposed were heard.

I have outlined a lot to be alarmed about in this bill. I am deeply saddened at this bill’s blatant attack on the right to life and recognition for our unborn babies. If we can discard the life of an unborn baby—if we can diminish their value and their humanity to the point that we no longer call them babies, then we have lost our own humanity, because they are the smallest versions of us. Late-term surgical abortions are nothing short of barbaric; there is nothing kind in it. A truly progressive society protects the rights of all its members down to the smallest and most vulnerable—the unborn child. I take a stand for that unborn child. I oppose this bill.

Hon AMY ADAMS (National—Selwyn):

 I want to begin by stating very clearly in the debate on this bill—which is a conscience issue—where I start from, and my fundamental views in this regard. I have an absolute belief that women have the inalienable right to control their own reproductive systems and to determine, ultimately, whether or not they have a child.

I think there is no place for a Parliament to be specifying and legislating what the appropriate medical treatment is in any given case. We are not medical professionals; we are lawmakers, and we have to respect that. I trust women and doctors to make these decisions carefully, gravely, and appropriately.

GREG O’CONNOR (Labour—Ōhāriu):

I stand in opposition to this bill. I voted for it at the first reading because I felt that the bill needed to go through a select committee to see if it could be made palatable.

Taking the legislation out of the Crimes Act, as I said, I agree with. That is something that I think there are sufficient safeguards in there now to keep it outside the Crimes Act. It does belong as a health issue, as some of the other speakers mentioned. But post – 20 weeks, there is just simply not enough safeguard to ensure that those—

PAULO GARCIA (National):

 I stand with sadness, with a heart filled with tribulation and pain because, once again, I stand to argue against a bill that seeks to enable the ending—the taking—of a human life by another human being.

The bill opens the door for the abortion of babies with not just severe abnormalities but also moderate ones, making disabled unborn children very vulnerable under the proposed law. That the current law explicitly prevents abortions on the basis of foetal abnormality up to 20 weeks, but the proposed law does not do the same represents a major step backwards in terms of disability rights.

I finish with a quote from the New York Times, quoting a Harvard medical professor who said that we pass through different stages as we grow, and that a “baby of five weeks in the womb differs from the newborn, but so does the toddler differ from the teen. … but we don’t pass from person to non-person, or vice versa.”

Hon NIKKI KAYE (National—Auckland Central):

I have extraordinary respect for freedom of speech and freedom of religion. But I support this bill for a few very fundamental and simple reasons. The first is I believe that every woman in New Zealand has the right to control her body. It’s very simple. It’s very simple; in fact, it’s so simple that we are one of the most archaic countries in the world—even Catholic Ireland has more liberal abortion laws than New Zealand.

Fundamentally, there are a couple of other reasons why it is crucial, in my view, that we have this law change. Again, I want to quote Dame Margaret Sparrow, who really, effectively, said a number of years ago that it is an absolute farce in this country that 98 percent—I think it was at the time—of the abortions were on the grounds of mental health. That is a farce, that is wrong, that is archaic, and it is time that, as a country, we changed that and we faced up to the fact that it is archaic and outdated and wrong to have a law on the books that, effectively, says that.

I do believe, as well, that many women in New Zealand, basically, fundamentally, want equality. They want the ability to have control over their body. They don’t want to have to be in these situations, but, if they are, they, ultimately, want respect and equality. I believe that this bill is timely. It’s progressive. It’s important. It will lead to less suffering


I today stand along the over about 91 percent of submitters that are opposed to this bill. I am acknowledging that 17 percent of submitters are for the bill. My views in opposition to this bill are derived from Tongan culture and as a Christian Tongan. That’s where I formed my view. And I need to say it in this House that I am a Christian and I was raised a Tongan Christian. And I don’t stand here to say that I represent all Christians or all Pasifika. I am representing my views as a Tongan and all the people that have actually spoken to me about those views.

Number of submitters is a part of a process, it is not a measure of public support or opposition.

Like I said in my introduction of my speech, I don’t stand here to represent all Tongans. I don’t stand here to represent all Christians. I stand here to represent what I’ve heard through the select committee and my definition of what this bill does. I accept that it’s trying to reform the legislation, but we must also remember that abortion is legal in New Zealand, but there is an opportunity to differentiate between a child and an adult. And I disagree with the fact that it is an informed decision by a woman who is pregnant at 14 to have an abortion. I disagree with that—that it is informed. And I also disagree with the fact that it’s the woman’s choice, because, at the end of the day, it is the health practitioner that makes the decision for the woman to have an abortion. And in that tone, I oppose this bill to the House.


I rise in support of the Abortion Legislation Bill, a piece of legislation whose time has come—decades ago—a piece of legislation that will take abortion out of the Crimes Act because it should never have been a crime. As earlier speakers have made a point of saying, there is no other medical procedure that is legislated the way abortion is.

I want to talk about the moral case behind this bill. I get messages saying, “Do you support abortion?” Of course I don’t. Nobody does. Nobody wakes up one day and thinks, “That’s what I’ll do today.” It is a difficult and harrowing experience to go through.

But that’s not the question. The question before this House tonight is: what should be the role of this Parliament and what should be the role of the State when it comes to abortion law reform? If any member thinks that it is somehow helpful for the State apparatus, for this Parliament, to ask the police and the corrections and the courts in this country to run around and try and compel women to take unwanted pregnancies to term against their will, then I don’t know how else to argue with those people, but I hope they’re in the minority tonight.


I support this reform of our abortion laws. Many people I deeply respect and admire do not share my views on this issue. I feel moved to express why I support it. I have carefully studied this bill. I have spoken with medical practitioners, those who perform abortions, those who have had abortions, those who’ve supported those who have had abortions, and my conclusion is that this bill advances the rights of women.

It will improve women’s access to health services. It will enhance our legal autonomy over our own bodies and our own fertility. It brings our law into line with good medical practice. It reduces unnecessary and potentially harmful delays in access to abortions, and it improves reporting on important issues such as equity and timeliness of access, availability of counselling services, and the spectre of gender selection.

This bill will reduce harm. Fundamentally, it improves choice for all of us and, crucially, requires that choice from none of us.

Let us trust women and let us trust medical professionals. I want my children to live in a world that genuinely cherishes the life of every woman, that respects her right to manage her own fertility, her own body, her own future. That is the world I want for my daughters. That is the world I want for my sons.


I rise tonight not on behalf myself to speak on this bill, but on behalf of the party.

As we promised in the first reading of this bill, we will see this bill through to the committee of the whole House where we will table a Supplementary Order Paper requesting a referendum on this issue.

As we promised in the first reading of this bill, we will see this bill through to the committee of the whole House where we will table a Supplementary Order Paper requesting a referendum on this issue.

We believe that this conscience issue, affecting the fabric of human society, should be decided upon by the people of New Zealand, not decided upon by 120 temporarily empowered politicians. We don’t believe that individuals in this House—their life experiences, their beliefs, or their family histories—are any more or less important than anyone outside of this House.

The fact that this House has decided that this vote is a conscience vote and not a party vote is explicit acknowledgment that every single individual Kiwi in this country will have an individual perspective based on their own conscience, not based on anyone’s conscience in this House, and especially not based on temporarily empowered politicians in this House or anything that’s based on party politics.

Going by the second reading vote, if NZ First MPs vote against the final reading if they fail with their amendment to have a referendum it looks still likely to pass.

Personally I don’t support a referendum on this.

CHRIS PENK (National—Helensville):

I refer to the report of the majority of the Abortion Legislation Committee on this, the Abortion Legislation Bill. The majority report is linguistically elusive, ideologically incoherent, and scientifically unsound.

I wish to also make a note about the select committee majority report claiming that the current legislation contains deeply offensive language in relation to disabled people. The disabled people themselves and the advocacy groups who have contacted me in relation to the bill find much more deeply offensive the notion that their lives will inevitably be deemed to be worth less in many situations, whereby conditions such as, for example, Down’s syndrome can be effectively screened to an even greater extent than is already the case by the fact that this bill does have a liberalising effect—that is, it makes the regime more liberal both in relation to pre-20 weeks and post-20 weeks, until either such time as birth is given or abortion services performed.

JOANNE HAYES (National):

 I stand to take a call opposing the Abortion Legislation Bill tonight. I’ve sat here on purpose to listen to the contributions in the House tonight, and some of the contributions have left me a little bit flummoxed with some of their ideas. I do not support the idea of taking the Abortion Legislation Bill into a referendum. I think this is what our job is here, to make a decision, and I don’t think that it should be anything like inside any referendum like New Zealand First did with the End of Life Choice Bill.

I think one of the speakers tonight from the Government side of the House spoke about this bill being abortion on demand. That’s what this bill is actually working towards. It is about abortion on demand.

Effectively yes, up to 20 weeks only.

This abortion bill is a licence to kill the unborn; that’s what it is. It’s a dangerous piece of legislation. Whilst there will be people in here that are supporting this bill that will say, “No, no, no, that’s not what happens.”, in reality that is what will happen. That’s what concerns me most, is the reality of it hitting the ground, hitting the women out there in the community and the families, that this will be a licence to kill unborn children. It ignores absolutely everybody’s opposition. I’m really, really sad to be standing here on a day, on an evening like this evening, to be able to say to my colleagues who are supporting this bill, it is the wrong thing to do.

Hon RUTH DYSON (Labour—Port Hills):

The opposition to this bill came not from people who oppose this bill but from people who oppose abortion full stop. People who, if they were being given the contraception, sterilisation, and abortion legislation, would oppose it.

There is nothing more offensive than being told that a woman would wake up one morning, 30 weeks pregnant and say, “I’m over this. I’m going to have an abortion.” Then to layer on top of that the accusation that a doctor would then say, “That meets my professional and ethical standards.”, and would go ahead with that termination—I don’t know who the people who say that knows. Who do you know that would do that? Nobody. It’s just a lie. On any topic, I think it’s important to tell the truth, but on a topic as important as this, as sensitive and as contentious as this, we should just tell the truth.

We felt we were taking a needed step, but one which we wanted to take very carefully in in a very considered way, and I think the committee did a very good job of that. We want to see a country where there are very, very few abortions. Our numbers are heading in the right directions now; I want to commend Pharmac for introducing long-acting contraception. We need more education, we need better access to contraception, but we will still need abortion services—the fewer the better, but the earlier, more equitable, and safer the better. That’s what this legislation seeks to deliver and I commend it to the House.

JAN LOGIE (Green):

Thank you, Mr Speaker, and it’s a real honour to speak tonight, as a feminist who has been working towards abortion law reform for years and also as a member of the Green Party who committed to decriminalising abortion about six years ago—[Interjection from gallery]

SPEAKER: Order! Order! The member will resume her seat. That man will be removed from the gallery.

JAN LOGIE: This may point to the need for safe areas and the fact that, actually, there is opposition to those of us who support women’s reproductive health rights. And that has resulted, or at least been used as an argument, in the assault against my co-leader.

If you care about women’s health, if you want to see these women accessing abortion care, accessing it earlier if it has to happen, this is the legislation to do it. I do think we should get rid of the 20-week threshold altogether, and that was bounded for me, it came through clearly from those very small numbers of people who are actually involved in providing this care in the country.

When we heard, previously, from a speaker talking about a GP saying, well, how were they to interpret wellbeing, they wouldn’t know what that would mean—it wouldn’t matter if they didn’t understand that, because they wouldn’t be providing them, because there’s only a very small handful of people who are qualified to provide those services. The thing is that it is according to very strict guidelines of care and medical ethics, and it is my belief that the decisions should still remain with the pregnant person.

A personal vote was called for on the question, That the amendments be agreed to.

  • Ayes 80
  • Noes 28

A personal vote was called for on the question, That the Abortion Legislation Bill be now read a second time.

  • Ayes 81
  • Noes 39

So it looks like the Abortion Legislation Bill should pass comfortably, and without a referendum.  That would be good, in my opinion.

The split between the first 20 weeks (choice) and the second 20 weeks (medical decision) is  pragmatic compromise that largely fits with current practice despite the archaic law.

There is strong opposition to changing the law, but the Bill just makes what is currently practiced officially legal with the stigma of ‘breaking the law’ removed.

The Bill won’t change much, apart from the sensible change from a legal to a personal or health issue. The number of abortions has been dropping, that trend may or may not continue but should be largely unaffected by the Bill.


End of Life Choice Bill passes second reading 70-50

End of Life Choice Bill passed its second reading last night in Parliament last night, by 70 votes to 50.

That is a comfortable margin, but it doesn’t mean that the euthanasia bill is a done deal. It will now proceed to the third reading, and a lot of Supplementary Order Papers will be debated on and voted on before we know what the final form of the Bill will look like. Then Parliament will make it’s final vote for or against.

NZ First are pushing for the final choice to go to a referendum to be run at the same time as next year’s general election. Whether that will happen is yet to be decided.

There are some strong views and emotional feelings on this issue on both sides of the debate. Unfortunately there are also some outlandish claims being made.

I think the key thing in this is Choice.

I personally would like that choice, if I was ever in a situation of terminal illness.

I understand that others feel strongly against euthanasia. I hope the End of Life Choice Bill will allow them to opt out, while giving choice to chose who want it, with sufficient safeguards.

Parliament has to decide whether to give a legal end of life choice to people.

NZ Herald has a list of How your MP voted on the End of Life Choice Bill

* Denotes MPs who have changed their vote since the first reading


  • Amy Adams – National – Selwyn
  • Ginny Andersen – Labour – List
  • Jacinda Ardern – Labour – Mt Albert
  • Darroch Ball – NZ First – List
  • Paula Bennett – National – Upper Harbour
  • Chris Bishop – National – Hutt South
  • Tamati Coffey – Labour – Waiariki
  • Judith Collins* – National – Papakura
  • Liz Craig – Labour – List
  • Clare Curran – Labour – Dunedin South
  • Marama Davidson – Green – List
  • Kelvin Davis – Labour – Te Tai Tokerau
  • Matt Doocey – National – Waimakariri
  • Ruth Dyson – Labour – Port Hills
  • Paul Eagle – Labour – Rongotai
  • Kris Faafoi – Labour – Mana
  • Andrew Falloon – National – Rangitata
  • Julie Anne Genter – Green – List
  • Golriz Ghahraman – Green –List
  • Peeni Henare – Labour – Tamaki Makaurau
  • Chris Hipkins – Labour – Rimutaka
  • Brett Hudson – National – List
  • Gareth Hughes – Green – List
  • Raymod Huo – Labour – List
  • Willie Jackson – Labour – List
  • Shane Jones – NZ First – List
  • Nikki Kaye – National – Auckland Central
  • Matt King – National – Northland
  • Barbara Kuriger – National – Taranaki-King Country
  • Iain Lees-Galloway – Labour – Palmerston North
  • Andrew Little – Labour – List
  • Jan Logie – Green – List
  • Marja Lubeck – Labour – List
  • Jo Luxton – Labour – List
  • Nanaia Mahuta – Labour – Hauraki-Waikato
  • Trevor Mallard – Labour – List
  • Jenny Marcroft – NZ First – List
  • Ron Mark – NZ First – List
  • Tracey Martin – NZ First – List
  • Kieran McAnulty – Labour – List
  • Clayton Mitchell – NZ First – List
  • Mark Mitchell – National – Rodney
  • Stuart Nash – Labour – Napier
  • Greg O’Connor – Labour – Ohariu
  • David Parker – Labour – List
  • Mark Patterson – NZ First – List
  • Winston Peters – NZ First – List
  • Willow-Jean Prime – Labour – List
  • Priyanca Radhakrishnan – Labour – List
  • Grant Robertson – Labour – Wellington Central
  • Jami-Lee Ross – Independent – Botany
  • Eugenie Sage – Green – List
  • Carmel Sepuloni – Labour – Kelston
  • David Seymour – Act – Epsom
  • James Shaw – Green – List
  • Scott Simpson – National – Coromandel
  • Stuart Smith – National – Kaikoura
  • Erica Stanford – National – East Coast Bays
  • Chloe Swarbrick – Green – List
  • Fletcher Tabuteau – NZ First – List
  • Jan Tinetti – Labour – List
  • Tim van de Molen – National – Waikato
  • Louisa Wall – Labour – Manurewa
  • Angie Warren-Clark – Labour – List
  • Duncan Webb – Labour – Christchurch Central
  • Poto Williams* – Labour – Christchurch East
  • Nicola Willis – National – List
  • Megan Woods – Labour – Wigram
  • Jian Yang – National – List
  • Lawrence Yule* – National- Tukituki


  • Kiritapu Allan*- Labour – List
  • Kanwaljit Singh Bakshi – National – List
  • Maggie Barry – National – North Shore
  • Andrew Bayly – National – Hunua
  • David Bennett – National – Hamilton East
  • Dan Bidois – National – Northcote
  • Simon Bridges – National – Tauranga
  • Simeon Brown – National – Pakuranga
  • Gerry Brownlee – National – Ilam
  • David Carter – National – List
  • David Clark – Labour – Dunedin North
  • Jacquie Dean – National – Waitaki
  • Sarah Dowie – National – Invercargill
  • Paulo Garcia – National – List
  • Paul Goldsmith – National – List
  • Nathan Guy* – National – Otaki
  • Joanne Hayes – National – List
  • Harete Hipango* – National – Whanganui
  • Anahila Kanongata’aSuisuiki – Labour – List
  • Denise Lee – National – List
  • Melissa Lee – National – List
  • Agnes Loheni – National – List
  • Tim Macindoe – National – Hamilton West
  • Todd McClay – National – Rotorua
  • Ian McKelvie – National – Rangitikei
  • Todd Muller – National – Bay of Plenty
  • Alfred Ngaro – National – List
  • Damien O’Connor – Labour – West Coast
  • Simon O’Connor – National – Tamaki
  • Parmjeet Parmar – National – List
  • Chris Penk – National – Helensville
  • Maureen Pugh – National – List
  • Shane Reti – National – Whangarei
  • Adrian Rurawhe* – Labour – Te Tai Hauauru
  • Deborah Russell* – Labour – New Lynn
  • Jenny Salesa – Labour – Manukau East
  • Alastair Scott – National – Wairarapa
  • Aupito William Sio – Labour – Mangere
  • Nick Smith – National – Nelson
  • Jamie Strange – Labour – List
  • Rino Tirakatene – Labour – List
  • Anne Tolley* – National – East Coast
  • Phil Twyford – Labour – Te Atatu
  • Louise Upston – National – Taupo
  • Nicky Wagner – National – List
  • Hamish Walker* – National – Clutha-Southland
  • Meka Whaitiri* – Labour – Ikaroa Rawhiti
  • Michael Wood* – Labour – Mt Roskill
  • Michael Woodhouse – National – List
  • Jonathan Young – National – New Plymouth

GCSB Bill 2nd reading – David Shearer


Second Reading

DAVID SHEARER (Leader of the Opposition):

Labour opposes this Government Communications Security Bureau and Related Legislation Amendment Bill.

We oppose it not because we do not accept that there are serious problems with our intelligence agencies, and not because we do not think that changes in law are not necessary, but because the Prime Minister, who is responsible for our intelligence agencies, has simply not made the case for why we need to ram through this legislation so quickly without taking a proper look at the critical issues right across our intelligence agencies—not just with the Government Communications Security Bureau (GCSB) but right across the intelligence network.

I asked John Key whether he had any evidence that New Zealand would be more at risk if this legislation was not passed through, and he simply could not make that case.

He also could not explain why, if changes are so urgent, he did not act a year ago when he found out the problems and put urgent legislation through then.

This bill has been rushed and it has been poorly informed. The Prime Minister denied my request for the Intelligence and Security Committee to hear the SIS, the defence forces, and the police about how they were going to fit with the GCSB and why they needed the GCSB’s support as they had described. He turned that down, and he did so because he did not want to take a closer look at what the problems really are.

He wants this off the political agenda, and that is the scenario we are looking at. He knows that people do not believe his explanations. New Zealanders do not believe his explanations. They are losing trust in his oversight, and they do not believe that he is passing the law for the right reasons.

He wants the spying scandal to just go away, but it simply will not go away. The tragedy of this is that it is a missed opportunity for New Zealand. It is an opportunity we could have had to pass legislation that would restore Kiwis’ confidence in our intelligence agencies so that people know we are operating in their best interests and that we have got the balance right between security on the one hand and their privacy on the other.

That is why Labour has argued we need a full and independent inquiry across our intelligence community before we put legislation in front of this House.

New Zealanders’ confidence has been shattered by the recent events in our intelligence agency. It has been a complete train wreck. We have seen a litany of failures—the Government Communications Security Bureau (GCSB) illegally spying on Dotcom.

And remember we would not be here putting this legislation through if it had not been for Dotcom and the fact that Bill English was trying to hide the illegal spying by the GCSB on Dotcom from the courts. That is a fact.

We then found out there is illegal spying on many other New Zealanders. We then find out that John Key has shoulder-tapped a mate of his to become the head of the GCSB. Now we have heard in this past week that a New Zealand journalist was spied on and tracked in Afghanistan, and our agencies were complicit in that.

Now we have got officials tapping into journalists’ phone records right here in our Parliament. The GCSB, of course, was involved in that too.

The Henry report actually states that they had a “substantial role”, particularly in the gathering of records. But, of course, John Key says it is nothing to do with him—nothing to see here, nothing to be worried about. It is the Parliamentary Service’s problem. It is David Henry’s problem. It is somebody in the GCSB’s problem. It is the legal adviser’s problem. It is somebody who had a brain fade’s problem in the GCSB.

Through all of these scandals John Key has been trying to pass the blame on to somebody else. When he does get caught out, we have to drag the truth out of him.

Well, I say to Mr Key it is time to stop making excuses. A serious mistake has been made. Stop blaming others and start taking some responsibility for the actions of the agencies that you lead.

Today was astonishing. Mr Key took the opportunity on breakfast radio to announce that there is the existence of al-Qaeda threats. This was, I believe, reprehensible.

We have seen the pattern before: weapons of mass destruction. We have seen the Boston bombings brought into the debate around the GCSB bill. But in this case there is no context, there is no detail, and there is no ability for him to give context or detail.

He is using his privileged position as the head of our spy agencies to give himself political gain. That is reprehensible. His scaremongering is designed to shift attention away from the facts of the case and the train wreck that is this bill and what is around it.

But here is the second thing that I find so astonishing about the Prime Minister coming out and saying something like this: it is incredibly stupid. It is incredibly stupid. Why do you not send a postcard to people who are threatening us, saying: “We’re spying on you.” It is incredibly dumb. This is not “Boys’ Own”. This is serious.

I have spent 7 years in the Middle East alongside people who have let off bombs, and my family was in a hotel where a bomb went off and killed 40 people. So does that make us feel safer—that somehow he could announce to everybody that these people are going to be spied on? Well, I think it is extraordinary.

Apart from anything else, we actually have agencies, our intelligence agencies, working on it. Those intelligence agencies are actually doing a pretty good job. They do not need to have their activities dragged into the public arena for a man’s political gain in order to help them with their jobs. In fact, they have definitely just had their jobs hampered as a result of that.

New Zealanders want to be able to trust our intelligence agencies again and to know that they are doing good work and they are properly policed, but that will not happen when all the power continues to rest in one person, unlike in any of the other countries that we are close to.

The Prime Minister appoints our top spy and he heads up the committee that provides the oversight, so he is in charge of operations and he is also in charge of oversight. He chairs that committee. On top of that he has the casting vote. He appoints the inspector-general and the commissioner of warrants.

Let us just go back again to where we started with this. It was about Dotcom. The only reason we got to hear about that was because Mr Dotcom revealed it in court. Otherwise, we would not have heard anything—we would not have heard anything.

We are setting up a system designed for cover-ups. We are setting up a system that simply will not work. The real shame about this is that we could have had a much better system.

In fact, I would go as far as this. I went and saw Mr Key. I said: “We’re prepared to work with you.” He said: “Doesn’t matter. We’ve got Mr Dunne. We’re chucking a bit of stuff at Dunne, and he’ll get across the line, and we won’t need you both.”

That is the extent of the negotiations with this side—no phone calls, no approaches, no nothing. I will say right now that Labour will work with the Government on an independent inquiry with terms of reference that can be agreed right across Parliament, and that we will work with you to get good law that will provide the confidence that New Zealanders need in order for our intelligence agencies to function in the proper way. Thank you.

GCSB Bill 2nd reading – Chris Finlayson


Second Reading

Hon CHRISTOPHER FINLAYSON (Attorney-General) on behalf of the Minister responsible for the GCSB:

I move, That the Government Communications Security Bureau and Related Legislation Amendment Bill be now read a second time. There has been a great deal of scrutiny and debate over this Government Communications Security Bureau and Related Legislation Amendment Bill. There has been a lot of uninformed commentary.

There have been a number of examples of the great and the good, the well meaning but impressionable being misled by ill-founded fearmongering.

So, at the outset, let me make it quite clear: this legislation is not a revolution in the way New Zealand conducts its intelligence operations and national security. It is not a case of expanding the borders of some intelligence empire. This is about fixing legislation that at its best is not fit for purpose and, at worst, is broken.

Under this bill, New Zealanders can be confident that our intelligence agencies are acting in accordance with the rule of law.

The bill sets out definitively what it is our intelligence agency can and cannot do under the law. There are no grey areas. There are no loopholes. This is very important because of the status of national security in a democratic society. National security is vital for maintaining the freedoms and the way of life that we hold dear.

It is vital for keeping us safe and free from harm. But national security tools, if turned inwards and not subject to strict controls, can erode that way of life and threaten the freedom of individuals. National security legislation must not have loopholes that can be exploited by those who would threaten our security, who would threaten loss of life through terrorism or criminal activity.

But, equally, national security legislation must not have grey areas of uncertainty or doubtful interpretation that allow the State gradually to extend its activities and creep into ordinary people’s private lives like some kind of growing shadow.

The bill strikes the right balance. It makes amendments to three Acts, with the three main objectives being to clarify what the Government Communications Security Bureau (GCSB) can and cannot do, to update the legal framework in response to the changing security environment, and to strengthen the oversight of our intelligence agencies.

Labour’s 2003 Government Communications Security Bureau Act sought to codify and make transparent existing practices of the then Government Communications Security Bureau. It failed. The Kitteridge report found that the 2003 legislation is not, and probably never was, fit for purpose.

The bureau currently has three core functions: cyber-security and information assurance, foreign intelligence, and cooperation and assistance to other entities. Those three functions are retained under this legislation.

For an organisation possessing the powers the GCSB does, an unclear legal framework is simply unacceptable, so the relationship between these three functions has been set out in much more explicit terms than in the existing legislation. Between 2003 and 2011 there were 88 instances of surveillance that highlighted difficulties of interpretation.

There is a grey area in the current law, and it arises because of a lack of clarity over the legitimate activities of the GCSB of those three different functions. That grey area disappears under this legislation.

On the matter of assistance and cooperation, Labour’s 2003 Act said that the GCSB could assist other public agencies in New Zealand in the performance of their functions and also to prevent and detect serious crime.

It authorised explicitly the surveillance of foreign organisations and individuals to obtain foreign intelligence—organisations and individuals who in some cases may make contact with New Zealand citizens and residents.

But the law also said, in apparent contradiction, that the GCSB must not intercept the communications of New Zealand citizens or permanent residents. In hindsight, this was a recipe for confusion.

Parliament had intended something straightforward, that the GCSB should target foreign nationals only when gathering intelligence under its second function, and, in addition, the GCSB should also be available to assist agencies such as the police and the SIS in their legitimate and warranted domestic activities.

But the wording was contradictory and unclear. The GCSB acted according to its internal advice, to fill this grey area. That advice was in keeping with the intention of those who passed the Government Communications Security Bureau Act in 2003, but it may or may not have been justified by the words of the statute itself.

Ambiguous law that leads to secluded decision-making on a case by case basis is unsatisfactory, so we are taking these steps to overhaul the legislation and make it fit for its original purpose.

The responsible thing for this Parliament to do is to clarify the Act to specify which agencies the GCSB may assist, and to what extent, and to remove ambiguity and increase oversight from outside the agency.

The question of oversight is a very important one generally, not only in relation to the GCSB. Former GCSB head Sir Bruce Ferguson recently implied that he wished there had been greater oversight of orders he issued as head of the Defence Force, classifying some journalists as subversives.

This week he acknowledged that he had never thought of journalists as the enemy, and expressed his disappointment that no one had since overturned the orders he could not remember making. It is a reminder that memory can fail us.

Some commentators, including Sir Bruce, have opined that the questions around the GCSB represent something new about the way intelligence operates in this country. That is simply untrue.

The problems of drafting and legislative interpretation date back to the passage of Helen Clark’s 2003 legislation.

This bill is not revolutionary. It is not an aggressive expansion of State powers. Its purpose is to provide concrete rules that leave less room for uncertainty. This is evident from the treatment of metadata in the bill. There has been much talk of metadata recently. It has become something of a buzzword.

Rt Hon Winston Peters: This is quite sad. This is quite sad.

Hon CHRISTOPHER FINLAYSON: But there is no magic in metadata, I say to Mr Peters. In this bill, metadata is treated as any other communication.

This bill authorises the interception of certain communications. Communication does not differentiate between data and metadata for the reason pointed out by a number of submitters: we do not have a clear definition of metadata.

The type and number of ways in which data can be described and indexed—that is, the categories of metadata—are growing all the time. If we included a definition, then we would risk leaving loopholes as new technologies emerge or new business systems are developed.

We do not want loopholes that expose New Zealanders to unnecessary risks because our legislation cannot keep up with technology. Nor do we want amorphous gaps in the legislation that could allow agencies to exceed the powers intended for them, by incrementally extending definitions by analogy.

This bill takes into account national security and privacy. The issue is not national security or privacy; it is both. National security is about protecting our citizens and the rights and the freedoms we value. The legislation is sensitive to those rights and freedoms.

In conclusion, the bill has been subject to extensive discussion and debate, which on occasion have obscured this very important issue.

The bill before us today incorporates 19 recommendations endorsed by the Intelligence and Security Committee—and it is important to say that they reflect public submissions—and there will be further changes, which have been flagged publicly, in a Supplementary Order Paper.

As I say, this bill does not represent an extension of powers but a clarification. I commend the bill to the House.